Win By Losing

February 18, 2014

The Indiana legislature yesterday handed marriage equality advocates a big victory by voting in favor of a constitutional ban on same-sex marriage.

Seriously.

Indiana is one of only four states left where same-sex marriage is banned by statute. Same-sex marriage is banned by state constitutions in 29 states, and is legal in 17 states. Indiana, like Pennsylvania, West Virginia and Wyoming, has no constitutional prohibition against same-sex marriage.

It’s not for lack of trying. In Indiana, an amendment to the state constitution requires approval from two separately elected legislatures, followed by public approval at the polls. Efforts to pass a constitutional amendment began in 2004. The measure finally passed in the state Senate in 2010, but the Democratic-controlled House let it die. Republicans took full control of the legislature in the 2010 elections, and the constitutional amendment passed its first legislative vote by large margins in 2011. Legislative leaders brought the amendment up again in 2014, and it passed again.

But before approving the amendment the second time, legislators modified it by deleting a sentence intended to preclude same-sex civil unions, leaving only a one-sentence ban on same-sex marriages. The amendment just approved therefore has had only one legislative approval – before it can go to the voters, it must be approved by a second, separately elected legislature. The second legislative approval can’t happen until 2015, and the voter referendum can’t happen until November 2016.

Maybe that sounds more like delay than success. But sometimes injustice delayed is injustice denied.

Approval of the stricter (no marriage, no civil unions) amendment in 2011 was by a margin of 70-26 in the House and 40-10 in the Senate. Approval of the more modest (no marriage) amendment this month was by a margin of 57-40 in the House and 32-17 in the Senate. The House has 69 Republicans and the Senate has 36 – meaning that a handful of Republicans in each house voted against even the narrower anti-gay ban.

The constitutional amendment has gained some important opposition outside the legislature as well. Major Indiana employers like Eli Lilly and Cummins joined the opposition. So did Indiana University. Even former Republican Governor Mitch Daniels expressed serious reservations.

Public opinion on the question is hard to gauge, but support for the constitutional amendment seems to be dubious. Wikipedia compiles the results of seven polls from 2011 to 2013. Four polls show statistical ties; one shows amendment supporters with a 29-point lead; and two show amendment opponents with leads of 16 and 20 percent. The rate of change in public opinion being what it has been of late, it may be that 2016 is just too late for marriage equality opponents in the Hoosier State.